The dawn of a new era in employment relations?

Though I now represent businesses and senior executives, I have represented all sorts of employees and employers over the course of my career. I always have believed that there is an advantage in having worked on both sides of the employment law fence: You understand the thought process and motivations of both employers and employees. Two situations in which I represented employees provided powerful insights that Market Basket's senior management overlooked as it terminated Arthur T. Demoulas and hired new management in an episode earlier this year that captured national headlines for the Boston-based supermarket chain. Had it been cognizant of the powers a critical mass of employees can bring to the table, it may well have avoided the catastrophic developments that Arthur T.'s loyal band of follows catalyzed (catastrophic, that is, from the perspective of Arthur S. Demoulas and Market Basket's new management). In one instance, four relatively senior employees came to me to discuss the abusive behavior of their company's CEO. After our consultation, three of the four agreed to seek a meeting with the company's board chairman. The board chair knew one of the employees well, so that employee made the call requesting the meeting. When the chair inquired as to the purpose of the meeting, the employee wisely responded that it was a sensitive matter that she would prefer to relate in person. The board chair consented to the meeting, at which the employee arrived with her two co-workers. After explaining why she had not told the chair that she would be accompanied by others (her two cohorts did not want to risk exposure before the meeting), the chair heard from all three senior executives about the CEO's behavior. Each vice president related different experiences. The board chair took what was said under advisement. Then - to his credit - he had the company initiate an investigation that ultimately led to the CEO's resignation. Another situation in which I provided counsel involved an employee who was fired despite having enjoyed a flawless employment record. He asserted that he had been abused by his boss, who, he alleged, had a cocaine addiction and as a result lacked balanced judgment regarding employee relations. When my client raised the issue of his boss's behavior with his manager's supervisor, his assertion was not credited; the termination went unaddressed and the boss continued to be employed (apparently without implications). A year later my client called to tell me his former boss had been fired because two other employees had brought to their supervisors' attention the same behavior about which my client had complained unsuccessfully. The lesson of the three VPs and the "cocaine" matter is that more than one complaining employee is more likely to succeed in persuading a company to act than a single employee offering his word versus that of his boss. A critical mass can make a big difference. When senior employees consult with me, they frequently have employment agreements that form the basics of our discussions. However, occasionally even senior officials do not have employment contracts and, at times, the employment contract is not the most significant element to be considered in determining the best strategy to obtain the best result for an individual client. Often there are more weighty leverage points. For example, if an older employee has had his employment terminated and he has been replaced by a younger worker, a discrimination allegation may result in an enhanced severance package. Another leverage point can result if an employee is prepared to raise issues with the support of colleagues. The path an individual employee may take can be perilous, if not Sisyphean, for him because - not surprisingly - most employers invariably will support a supervisor over a single complaining employee (who is then often thought of less well at work). In Market Basket's case, its management team and board seemingly treated its workforce as a single employee with whose word its senior management disagreed. I have handled many situations for employers in which one employee asserts misdeeds by a supervisor. Invariably, I will have the employer investigate the matter and, if the employee is credible and the allegations can be corroborated, the employer will take action. On the other hand, I have been presented with a number of situations in which one employee complains, the supervisor (seemingly credibly) denies the subordinate's allegations, and there is no reason to disbelieve the manager. In those instances, the manager prevails. To further illustrate the poor judgment exercised in the Market Basket situation, a client of mine not long ago was confronted with a lawyer's letter on behalf of a female sales assistant, who asserted that she had been sexually harassed. The case at first presented a not uncommon difficult "he said/she" said context. However, the complainant's attorney subsequently presented another letter on behalf of another woman with similar issues. Then two corroborating witnesses indicated a willingness to support the accusations of the two women. A settlement quickly ensued. There are two points to all of this is: one, there is strength in numbers; and two, employers must be vigilantly aware of the attitudes, allegiances and concerns of their workforce. Market Basket's Arthur S. administration clearly had no clue how its employees felt about Arthur T. Once a critical mass was created, the Arthur S. management and board faction found itself in a position it could not win. The Market Basket fiasco manifests starkly the leverage that a group of employees can bring to a workplace employment issue (in that case, the termination of a chief executive officer). The board took a classic approach to employee complaints, failing to recognize that workers who share a strong bond often are willing to act on it. It does not always require an entire workforce to generate change, but it can and often does require more than one employee to persuade many in management that they need to pay attention to issues that they may otherwise discount. Of course, every situation is different and not every employer or supervisor is indifferent, but, in my view, too many CEOs, CFOs and boards are not fully aware as to what occurs every day at the office or in the factory. The implication of the Market Basket experience for employers is that more employees may now realize that there is strength in numbers. It takes a brave (and sometimes desperate) employee to alone challenge his boss. It is more heartening and effective to do so together with colleagues. I offer the following advice to employers: Employers need to stay close to and know their workforce and its internal dynamics by (1) organizing their human resources department to integrate most effectively with the workforce (the companies with the fewest employment-related issues tend to be those at which the HR department is most on top of what is happening at the office or in the plant); (2) assign at least one board member as a liaison with the HR department and to spend time "on the ground" with employees themselves; and (3) encourage supervisors to report employee concerns at the earliest possible stage. Published: Mon, Dec 08, 2014